R. v. Tattersall Date:, 2016 BCPC 81

Citation: R. v. Tattersall Date: 20160226 2016 BCPC 0081 File No: 41771-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN BEAVER TATTERSALL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: R. Smith Counsel for the Defendant: L. Cooper Place of Hearing: Prince George , B.C. Date of Judgment: February 26, 2016 [ 1 ] On August the 28th, 2015, Jonathan Beaver Tattersall pled guilty to the following offences which occurred on August the 11th,

[ 1 ] On August the 28th, 2015, Jonathan Beaver Tattersall pled guilty to the following offences which occurred on August the 11th, 2015:

a) robbing a Toronto Dominion Bank of money while armed with an imitation of an offensive weapon contrary to s. 344(1) (

b) of the Criminal Code ;

b) having his face masked with intent to commit an indictable offence contrary to s. 351(2) of the Criminal Code ; and,

c) carrying or possessing a weapon, namely a BB hand gun for the purposes dangerous to the public peace or for the purposes of committing an offence contrary to s. 88 of the Criminal Code . [ 2 ] In the words of Mr. Tattersall, these offences represent the stupidest and most irrational act he has ever done in his life. CIRCUMSTANCES OF THE OFFENCE [ 3 ] On Tuesday, August the 11th, 2015 at 2:24:04 p.m. Mr. Tattersall walked into the Toronto Dominion Bank at 5902 O'Grady Road, Prince George, B.C. He had never been in that branch before. He did not even live in Prince George. [ 4 ] Mr.

Tattersall was outfitted in dark grey sweatpants, dark grey gloves, orange-soled running shoes, a light grey hoodie, a water bottle, backpack, dust face mask and safety googles. In his right hand he carried an unloaded pellet gun. [ 5 ] Mr. Tattersall's running shoes were covered with bright green tape. His water bottle and backpack were also adorned with bright green tape. [ 6 ] Around the time Mr. Tattersall entered the bank, teller Paravmir Nijjar was helping a customer with a bank draft. He headed towards the bank manager's office for authorization.

Ann Mayhew was the TD bank manager at the time. [ 7 ] As he was crossing the bank lobby to Ms. Mayhew's office, Mr. Nijjar saw Mr. Tattersall enter the bank wearing the mask, a hoodie, and carrying a gun. Mr. Nijjar knew right away the man was there to rob the bank. [ 8 ] Mr. Tattersall went up to Mr. Nijjar and threw him a black plastic garbage bag and told him to fill it with money. Mr. Nijjar went to the teller's side of the till, swiped his access card and manually withdrew $400. Mr.

Tattersall told him he wanted more. [ 9 ] As this was happening, bank employee Leanne Bellamy was assisting customer Valerie Hopwood withdraw American money. Ms. Bellamy went into the back room. She heard Mr. Tattersall yell "How much was that?" She looked out of a small window and saw Mr. Tattersall pointing a gun at Mr. Nijjar. [ 10 ] Mr. Tattersall later told Dr. Morgan that when Mr. Nijjar told him he had only $400, Mr. Tattersall told Mr. Nijjar, "You have to do better." [ 11 ] Ms. Hopwood also saw Mr. Tattersall approach Mr. Nijjar with a gun in hand. She saw Mr.

Nijjar put the money in the black garbage bag. [ 12 ] While standing at the counter, Ms. Hopwood concealed her own purse behind a calendar and wrote down details of the masked gunman. She noted he was wearing sweatpants, dark grey gloves, safety glasses and shoes with bright orange soles covered in green tape. [ 13 ] Ms. Hopwood noted he had green tape on his backpack, possibly covering a logo, and on a water bottle attached to his waist. Ms. Hopwood also observed Mr. Tattersall was unhappy with the amount he had been given and heard him demand more. [ 14 ] While Mr.

Tattersall kept his imitation gun pointed at him, Mr. Nijjar swiped his card and withdrew a further thousand dollars. Bank employee Dallas Coyle saw Mr. Nijjar give Mr. Tattersall the money and overheard Mr. Tattersall say "You better do something about giving me more." [ 15 ] Mr. Nijjar went to Ms. Mayhew's office holding the garbage bag, Mr. Nijjar told her they were being robbed and that the gunman wanted more money. Ms. Mayhew heard Mr. Tattersall say something along the lines, "I've got a gun." Mr. Tattersall later told Dr. Morgan he might have said "Someone is going to get hurt." [ 16 ] Ms.

Mayhew went to the machine, manually swiped her access card, withdrew $2,000, and gave it to Mr. Tattersall. Mr. Tattersall thought she gave him a thousand dollars. Ms. Mayhew and Mr. Nijjar both heard Mr. Tattersall racking his gun. Mr. Tattersall told Dr. Morgan he remembers cocking the pistol, but that he was not going to shoot. [ 17 ] Mr. Coyle heard Mr. Tattersall says, "Hurry up. Hurry up." He saw Mr. Tattersall leave out the front door, jump the fence, and head down O'Grady Road. [ 18 ] Mr. Tattersall was captured on the bank's surveillance videos from the time he entered the bank until he left.

Still photographs from the bank surveillance videos were entered into evidence in the sentencing hearing as Exhibit 1. [ 19 ] Mr. Tattersall left the bank at 2:26:44 p.m. He had been there less than three minutes. He left the bank with $3,400 cash. [ 20 ] A witness, Sherry Flank, saw Mr. Tattersall run from a grassy area near the bank, enter the bank with a hand gun, leave the bank, then flee on foot. The witness called the police at 2:25 p.m. reporting that a male had robbed the TD bank at gunpoint. She described Mr.

Tattersall as short, wearing grey pants, a full hoodie and a gas mask. [ 21 ] While en route to the bank, the police officers learned the bank had been robbed at gunpoint and the gunman had fled on foot

prior to their arrival. The police arrived at the bank at 2:28 p.m. [ 22 ] When Mr. Tattersall left the bank, he headed for an area the Crown describes alternatively as a greenbelt, wooded area, and undeveloped bush. For consistency's sake, I will refer to it as the bush. Mr. Tattersall ran until he could not run anymore. He changed his clothing and left the backpack in the bush so he would not be seen with it. Mr. Tattersall then marked the area with orange flagging tape so he could locate the backpack later. [ 23 ] Mr. Tattersall hiked through the bush and to his vehicle, which he had parked at Visions.

He drove to West Lake, showered, rested and returned to retrieve his backpack. [ 24 ] In the interim, the police attended the scene and commenced their investigation. Although the complainant told the police the gunman had fled, the police were concerned he still may be in the bank. They set up a perimeter surrounding the bank. At 2:35 p.m. the police ascertained Mr. Tattersall was no longer in the bank. [ 25 ] The police engaged the police dog services. Constable Grafton and his dog Azar were able to ascertain that Mr.

Tattersall left from the front of the bank, headed west along O'Grady Avenue and into the bush. Constable Grafton and Azar tracked Mr. Tattersall to the entrance of College Heights trailer park where the track went cold. [ 26 ] The police dog Baron took over the hunt and along the track the police came upon Mr. Tattersall's backpack.

They seized the backpack and found inside a grey hoodie, grey sweatpants, garbage bags, gloves, the dust mask, googles, orange flagging tape, an Airsoft BB pistol, a knife, a can of bear spray and $700. [ 27 ] At about 4:40 p.m., Officer Johnson noticed a piece of orange flagging tape attached to a branch. He surmised the gunman used it to mark the location in order to return to retrieve the backpack. As Mr. Tattersall's track went cold at College Heights trailer park, the officers decided to wait to see who showed up to claim the backpack. [ 28 ] After an hour, Mr.

Tattersall showed up wearing shorts, a T-shirt, sunglasses, and flip flops. The officers saw him go to the flagging tape to look for something. The officers arrested Mr. Tattersall at gunpoint and took him into custody. Mr. Tattersall has remained in custody to this day. [ 29 ] After the officers arrested Mr. Tattersall, they obtained a warrant to search his vehicle. They found a Sport Chek bag with a receipt for Air Max shoes purchased on August 9th, 2015.

The box for the shoes matched the description of those the gunman was wearing in the robbery. [ 30 ] The officers also found a Seiko rifle, CO 2 cartridges, pellets, Copperhead BBs, a broken bow with arrows and a quiver, a sheath, buck knife, a pouch containing marihuana, a pipe and a lighter. In the trunk console, they found $2,700 cash. [ 31 ] Mr. Tattersall was fully cooperative with the police. He readily admitted to the robbery. He wrote an immediate apology. He has remained in custody since his arrest and he has never sought judicial interim release. MOTIVE AND PLANNING [ 32 ] Mr.

Tattersall's motive for the robbery can be gleaned from his statements to the police, probation officer Leslie Currie, forensic psychiatrist Dr. Morgan and submissions of his legal counsel. [ 33 ] In early August 2015, Mr. Tattersall lived in Smithers with his wife and infant son in his mother's home. Mr. Tattersall had lost his job in the economic downturn. When his wife became seriously ill, he accrued thousands of dollars of debt. Mr. Tattersall was not able to support his family on his income and they were forced to move to Smithers to live with his mother.

There he had difficulty finding more than piecemeal work in construction. He was in desperate straits. He was under employed, unable to pay his debts or adequately provide for his young family. He became depressed and distraught. A particular concern for Mr. Tattersall was his financial inability to move his family out of his mother's house into their own home. [ 34 ] On August the 5th or 6th, 2015, Mr. Tattersall told his family he was going gold panning. He took his hunting gear and drove his truck to West Lake near Prince George. At West Lake he practiced target shooting and tried to enjoy himself.

He also stewed over his problems. [ 35 ] Mr. Tattersall came up with an astonishing solution to his financial distress: he would rob a bank. He later told Dr. Morgan, "I just wanted to provide, it would have been a one-time thing." He would get enough money to buy a house for his family in Granisle, B.C. [ 36 ] Mr. Tattersall told Dr. Morgan he did not plan a whole lot. He knew he had to get some money, but he didn’t know if he would be able to pull off the robbery. [ 37 ] Mr. Tattersall picked the bank that was closest to the bush in order to make it easier to escape. This is how Mr.

Tattersall came to target the TD bank on O'Grady Avenue. He had never been in the TD bank except to rob it. [ 38 ] The following evidence at the sentencing hearing indicates planning:

a) Mr. Tattersall chose a bank in Prince George rather than in his home town of Smithers;

b) Mr. Tattersall chose the bank close to the bush so he could have an easy escape route;

c) Mr. Tattersall wore a dust mask and goggles to disguise his face;

d) Mr. Tattersall wore gloves, which disguised his hands and ensured he would not leave fingerprints;

e) Mr. Tattersall put bright green tape on his shoes to disguise them;

f) Mr. Tattersall put bright green tape on his backpack and water bottle;

g) Mr. Tattersall planned an escape route, which he followed;

h) Mr. Tattersall brought with him a change of clothing. After robbing the bank and running into the bush, he stopped and changed his clothes;

i) Mr. Tattersall left the backpack in the bush to avoid being seen with it;

j) Mr. Tattersall marked the spot where he left the backpack with orange flagging tape; and,

k) Mr. Tattersall returned to retrieve the backpack in very different attire than he wore to rob the bank. [ 39 ] The Crown asserts that Mr. Tattersall came to Prince George to carry out the bank robbery. It is not clear to me whether this assertion is something Mr. Tattersall admitted to the police or is simply a police inference. I say that because it seemed to me the Crown was providing the court with a synopsis rather than a verbatim account of Mr. Tattersall's statements. It is not apparent from Mr. Tattersall's statements to his Probation Officer Currie and Dr.

Morgan whether he hatched the plan to rob the bank prior to or after arriving at West Lake. [ 40 ] Mr. Tattersall said in his statement his plan was not a good one. Mr. Smith says that as plans go in these sort of events, it was better than most. But for the flagging tape, Mr. Tattersall would have never been caught. The police noticed the tape and on a hunch waited to see if someone would return for the backpack. Frankly, I would have been surprised if the police had not carried out a surveillance of the backpack with or without the flagging tape.

After all, the backpack contained a pellet gun, clothing, hoodie, gloves, mask, googles, flagging tape and $700. Moreover, the suspect's track had gone cold. Waiting for the owner of the backpack to return seems to me a logical investigative technique. [ 41 ] In my view Mr. Tattersall's plan was only eloquent in its simplicity. He would don a simple disguise, walk into the bank, pretend he had a real weapon, demand money, leave, run to the bush, change his clothes and hope he was not captured or identified. It may be a plan, but not one of great sophistication. This is apparent from Mr.

Nijjar who knew from the moment he saw Mr. Tattersall he was there to rob the bank. [ 42 ] The focus of Mr. Tattersall's plan was to avoid being identified and to escape with the money. He may have picked a bank near the bush, but he had never stepped foot in the bank before the actual robbery. I do not see a great deal of difference between someone who seeks to escape by running into the bush from someone who seeks to escape by running into a crowd. CIRCUMSTANCES OF THE OFFENDER [ 43 ] Both Leslie Currie, a probation officer of Community Corrections, and Dr.

David Morgan of Forensic Psychiatric Services provided presentence reports. These reports provided helpful information about Mr. Tattersall and the reason he committed the offences for which he is charged. [ 44 ] Mr. Tattersall is 31 years old. His father is Metis and while growing up, Mr. Tattersall participated in traditional hunting activities and communal sharing of their harvests. Mr. Tattersall has carried on that activity until his incarceration and that activity included hunting with a bow and an arrow. [ 45 ] Mr.

Tattersall had a tough and chaotic childhood which was sometimes loving and sometimes abusive. His parents divorced. Thereafter, he lived with his mother and her new husband, who was also his uncle. [ 46 ] The newly constituted Tattersall family was poor and moved around a lot. When he was nine or 10 years old, Mr. Tattersall was sexually abused by a 15-year-old male. When he was 17, Mr. Tattersall's mother was forbidden from seeing her son for seven years due to religious disfellowship by the Jehovah's Witnesses sect to which she belonged. [ 47 ] Mr.

Tattersall left school in Grade 10 to go to work to help provide for his family. He has worked in various jobs since he was 15 years old, including McDonald's, tree nurseries, a sawmill, automobile dealerships and mines. [ 48 ] In 2009, Mr. Tattersall began working in the mining industry as a labourer. It paid well until 2013 when he was laid off because of an economic downturn. Mr. Tattersall borrowed money from his mother to pay his bills. By August of 2015, he owed her thousands of dollars he could not repay. It weighed heavy on his mind. [ 49 ] Mr. Tattersall is married to Kayla Tattersall.

They have one child, L.T. While pregnant with L.T., Ms. Tattersall became ill and had to quit her job. Shortly after their son was born Ms. Tattersall suffered a stroke and was hospitalized. Her medical condition required expensive medication not covered by the provincial health insurance plan. Mr. Tattersall, who worked as a carpet cleaner, could not support his family and pay Ms. Tattersall's medical bills on his salary. [ 50 ] Ms. Tattersall moved his family to Smithers where they lived with his mother. He was being pressured to move his young family into their own home.

He became overwhelmed with stress from dealing with his unemployment, wife’s illness, debts, and the need to find a home and support his family. [ 51 ] In his presentence psychiatric report, Dr. Morgan writes: In terms of the index offence, it may be that Mr. Tattersall’s experiences in living through his parent’s divorce contributed towards his committing the index offence. It may be that as a result of his deep commitment to his wife and desire to provide for his family, he was

prepared to commit an armed robbery. His strong commitment to his wife and son may be a product of witnessing his parents divorcing, and his having to undertake the role of breadwinner at an early age. It may be that Mr. Tattersall equates his ability to materially provide for his family with his role as a father. RISK ASSESSMENT [ 52 ] In his psychiatric presentence report dated November 25th, 2015, Dr. Morgan opines that Mr. Tattersall does not suffer from any serious or enduring mental illness. Mr. Tattersall does suffer from severe cannabis use disorder. With respect to Mr. Tattersall’s risk to reoffend, Dr. Morgan has provided the following expert opinions:

a) Outside the offence for which he is been charged, Mr. Tattersall does not have a history of problems with antisocial behavior;

b) Mr. Tattersall does not have a history of problems with relationships or employment;

c) Mr. Tattersall does not have a history or recent problems with a Major Mental Disorder or a Personality Disorder;

d) Mr. Tattersall does have a history of significant problems with marijuana substance abuse;

e) Mr. Tattersall does have a history of problems with traumatic experiences;

f) Mr. Tattersall may have a history of problems with violent attitudes given the offence before the court represents “instrumental, as opposed to impulsive, violence”;

g) Mr. Tattersall does not appear to have any history or recent problems with instability, treatment or supervision response; and

h) Mr. Tattersall appears to lack insight into how his substance use and early life experiences contributed to his committing the robbery. [ 53 ] In terms of risk management Dr. Morgan opines that Mr. Tattersall would likely not experience future problems with professional services or plans, but he may experience problems with his living situation. He needs to develop more mature coping mechanisms, which would assist him in remaining more composed when under stress. [ 54 ] Dr. Morgan recognizes that Mr. Tattersall appears to have good personal support and is motivated to deal with his problems. Mr.

Tattersall does not require further psychiatric treatment. Dr. Morgan identifies a number of areas in which Mr. Tattersall could benefit from counselling: substance abuse for his historical marihuana use, violence reduction and childhood trauma. REMORSE [ 55 ] Upon his arrest, Mr. Tattersall confessed to the robbery and never equivocated. He told Dr. Morgan he "really messed up bad." He wrote an apology letter immediately after the event. At the sentencing hearing on February 22nd, 2016, Mr. Tattersall made a public apology to the people at the bank.

He said he was deeply sorry for what he did and was really ashamed of himself. He recognized the grief he has visited upon his family with his actions. It is apparent from the letters filed as Exhibit 4 in these proceedings that Mr. Tattersall's remorse predated the sentencing hearing. REHABILITATION [ 56 ] Since he has been in custody, Mr. Tattersall has taken advantage of whatever work or programs were made available to him. He said he was lucky enough to get into a working unit and began doing carpentry in the kitchen. He signed up, participated in, and completed a number of programs.

The certificates he earned while in custody at Prince George Regional Correctional Centre were filed as Exhibit 3 in the sentencing hearing. These included courses in money management, housing, communication, nutrition, violence prevention, orientation. He took multiple courses in substance abuse and healthy relationships. [ 57 ] Mr. Tattersall said he has been working very hard to become a better person. By not using marihuana he has become clear headed. He has started to learn. Through his counsel, Mr. Tattersall has requested to be assigned community work service. [ 58 ] When addressing the court, Mr.

Tattersall said he is sincere about wanting to give back to the community. He is really sorry for what he has done. His goal is to be a great father, a great husband, get a job, and continue his education. He said, "No matter what sentence I get here today, I am going to maintain my resolve to reach these goals." [ 59 ] Filed as Exhibit 4 in the sentencing hearing are a number of letters written to the court on behalf of Mr. Tattersall. These include a letter from Mr.

Tattersall's brother, Joshua Tattersall; his father, Kevin Tattersall; his mother, Angie Tattersall; his wife, Kayla Tattersall; and family friends, Robert Ross, Aaron Mott and Elize Strause. Suffice to say they all vouch for Mr. Tattersall's good character, voice their dismay at his committing a robbery, vow to support him in his rehabilitation and return to the community. [ 60 ] Exhibit 4 also includes a letter from Dr.

Jodi Preto confirming Kayla Tattersall's medical issues, past and present, and a letter from Lloyd Tattersall, president of Gavin Mines, confirming that Jonathan Tattersall has employment with his company upon his release. VICTIM IMPACT STATEMENTS [ 61 ] The only person to provide a written victim impact statement was TD manager Ann Mayhew. She said her experience on August 11th, 2015, left her nervous and emotional when she returned to work. Although she has no fear of Mr. Tattersall, she is concerned for the security at work and the safety of her team members. Mr.

Nijjar was offered an opportunity to provide a victim impact statement, but declined to do so. [ 62 ] As the Crown points out, although the device Mr. Tattersall held in the robbery was an unloaded, fake firearm, it was very real

to the persons who observed it in the bank. To one employee, it looked like a black semi-automatic pistol. To the others, it was simplya gun. CROWN'S POSITION ON SENTENCE [63] The Crown takes the position that the appropriate jail sentence in the case at bar is three to five years, less enhanced credit forpresentence custody. The Crown relies on statutory principles of sentencing and the case authorities to which I will later refer. DEFENCE POSITION ON SENTENCE [64] The defence takes the position the appropriate jail sentence is two years less one day, accompanied by a period of probation.

Ifthe court is of the view a fit sentence requires more jail time, the defence asks that it be an amount that will allow Mr. Tattersall to servehis sentence in a provincial facility. In other words, the total jail sentence would not exceed two years, plus the time Mr. Tattersall hasspent in presentence custody. This is important to Mr. Tattersall so he can remain in the province to maintain contact with his lovedones. [65] The defence also relies on the statutory purposes and principles of sentencing and the case authorities to which I will referbelow.

PRINCIPLES OF SENTENCING [66] The Crown submits the importance of the purposes of sentencing set out at 718 of the Criminal Code, which states: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [67] S. 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. [68] S. 718.2(

a) requires a sentencing judge to consider all aggravating and mitigating circumstances related to the offence or theoffender. Relevant factors such as the presence or absence of a criminal record can push a sentence up or down in the scale ofappropriate sentences for similar offences. [69] Consideration of all aggravating and mitigating factors ensure the sentencing is approached in an individualized manner andthat each case is decided on its own facts. “While the judge is obliged to consider all aggravating and mitigating factors, he or sheenjoys a broad discretion in assessing the relative importance”: R. v.

Nasogaluak, 2010 SCC 6at paragraphs 43-44. [70] In this case the Crown asserts Mr. Tattersall's degree of planning, use of the imitation weapon and face mask, are aggravating. Both Crown and defence agree Mr. Tattersall's absence of criminal record is mitigating. To the defence, the fact Mr. Tattersall has nocriminal record is paramount. [71]

Section 718.2 of the Criminal Code codifies the parity principle which requires the sentence to be “similar to sentences imposedon similar offenders for similar offences in similar circumstances.” [72] In this regard, the Crown asserts the appropriate range for these offences in the circumstances of this offender is a jail term ofthree to five years. The defence argues for the term of two years less a day or alternatively, if a lengthier term is required, one that wouldstill allow Mr. Tattersall to serve his time in a provincial facility taking into account his presentence custody. [73]

Section 718.2 of the Code codifies the totality principle which requires a judge to ensure that when imposing consecutivesentences the combined sentence should not be unduly long or harsh. [74] S. 718.2(

d) and (

e) codify the restraint principle which holds “an offender should not be deprived of liberty, if less restrictivesanctions may be appropriate in the circumstances; and “all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particularattention to the circumstances of aboriginal offenders.” The defence submits that in light of Mr. Tattersall's Metis heritage the principlesespoused in R. v. Gladue, (SCC) as explained in R. v. Ipeelee, 2012 SCC 13 are relevant.

These are generallyreferred to as Gladue factors. COLLATERAL CONSEQUENCES [75] The defence asks the court not to impose a sentence which would result in Mr. Tattersall being moved to a federal penitentiaryin another province. In other words, he asks the court to consider the collateral consequences of the imposed sentence.

[76] There is a wide range of sentences in robbery cases which is attributable to what the Supreme Court of Canada in R. v. Pham,2013 SCC 15 , refers to as the correctional imperative of sentence individualization.

It requires a sentencing judge to tailor thesentence to fit the offender and the crime. [77] In Pham, the Supreme Court of Canada held (at paragraph 11), in light of the fundamental purpose of sentencing set out ins. 718, a sentencing judge may take into account the collateral consequences of a sentencing decision: [11] ...the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. Theymay be taken into account in sentencing as personal circumstances of the offender.

However, they are not, strictly speaking, aggravatingor mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of theoffender (s. 718.2(

a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity.The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(

d) ofthe Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibilityof the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. [78] In Pham the collateral consequences concerned the effects of a sentence of more than two years on the immigration status of theoffender, and in particular the availability of a right of appeal against a determination of inadmissibility. Most cases since then havediscussed Pham in this context. In R. c. Stanberry, 2015 QCCQ 1097, however, J.Q.C.

Healy points out Pham does not limit theconsideration of collateral consequences to immigration. [79] Although in Pham the Supreme Court adopted a flexible view of a relevant collateral consequence, it emphasized the anadjustment for a collateral consequence is constrained by the principles of proportionality, in other words, it is not a licence to deviatefrom what would otherwise be a just and appropriate sanction in the circumstances of the case. [80] In R. v. Prevost, 2013 BCSC 1974, Mr. Justice Finch said: Sentencing always has collateral consequences.

The extent to which collateral consequences can find expression in a sentence must beconsidered in relation to the nature of the offence committed and the obstacles those consequences may pose to the achievement of otherimportant sentencing goals. While collateral consequences may warrant some flexibility in the imposition of sentence, they do notwarrant imposition of a sentence that is outside the applicable range or one which otherwise fails to reflect the gravity of the offence anddegree of responsibility of the offender. [81] In this case the collateral consequence to Mr.

Tattersall is twofold: he will be subject to a mandatory 10-year firearm prohibitionand he will be separated from his wife and infant son. These two collateral consequences are not mitigating because they have nobearing on the gravity of the offence or in his degree of responsibility. They are collateral in the sense they are incidental to the term ofan appropriate sentence. [82] Mr. Tattersall is Metis and hunting was an important activity in his life. He will be prohibited from participating in this activitylong after his prison sentence has expired.

It is impossible to quantify the enduring effects of the separation from his wife, who is a newmother and still ill, and from his son in his infancy. [83] As noted in J.Q.C. Healy notes in Stanberry, these are collateral consequences which will endure with great force over time. They are properly regarded, as the court found in Pham, as "personal circumstances of the offender." The collateral consequences inthis case will certainly magnify the severity of the sentence and for this reason they must be taken into account. As J.Q.C.

Healy statesat paragraph 23 in Stanberry: To the extent that collateral factors might alleviate the severity of a sentence they are probably best viewed as grounds for the court’sexercise of mercy. CROWN AUTHORITIES [84] Mr. Smith submits that but for a Crown oversight, Mr. Tattersall ought to have been charged under s. 85(2) of the CriminalCode.

He points to the penalties imposed by s. 85(2) as an expression of the social opprobrium with which the Canada public throughparliament have attached to the use of imitation firearms while committing an indictable offence. [85] The Crown's submission in these circumstances raised certain issues that have been recently touched on by the Manitoba Courtof Appeal in R. v. Johnson, 2015 MBCA 50. [86] In Johnson, the Manitoba Court of Appeal asked whether it was appropriate for a sentencing judge to consider the use of animitation firearm as an aggravating circumstance in a robbery under s. 344(1)(

b) when the accused is also convicted of an additionaloffence using the imitation firearm under s. 85(2)(a).

The offender argued treating the use of an imitation firearm as an aggravatingfactor in the robbery and also sentencing for the use of an imitation firearm in the same robbery would result in an accused beingsentenced twice for this one factor. [87] On appeal the Crown abandoned this argument that the use of the imitation firearm was an aggravating circumstance relevant tothe robbery, but appellate court gave some insight into this issue, it said: [14] A review of the jurisprudence discloses that there has been a divergence of views as to the correct approach to sentencing in thissituation, including the following:

a) a sentencing judge should take the use of a firearm into account as an aggravating circumstance when sentencing and also imposeat least the minimum punishment under s. 85 (see R. v. St. Amand (1982), (ON CA), 67 C.C.C. (2d) 130 (Ont.C.A.); R. v. Flanders (1984), (NS CA), 65 N.S.R. (2d) 171 (C.A.); R. v. Warkentin (C.) (1994), (SK CA), 125 Sask.R. 236 (C.A.); and R. v. Brewer (P.J.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 14 (Nfld. C.A.));

i. a sentencing judge should take the use of a firearm into account as an aggravating factor when sentencing for robbery, but limit itsweight as it has already been taken into account when sentencing under s. 85(2) (see R. v. McKinney (J.E.)(1994), (BC CA), 39 B.C.A.C. 233; R. v. Fearon (C.J.) (1995), (BC CA), 65 B.C.A.C. 223; and R. v. Abiodun, 2013 ABCA185 ,2013 ABCA 185 (QL)). [15] While not dealing with these specific offences, there is also jurisprudence that suggests that the use of a firearm should not beconsidered twice in sentencing. (See R. v.

Araya (N.), 2013 ONCA 734 at paras. 52-55, 312 O.A.C. 284; and R. v. Wills(B.), 2014 ONCA 178 at para. 62, 318 O.A.C. 99. See also the comments of the Supreme Court of Canada regarding “doubledipping,” albeit in another context, in R. v. Summers, 2014 SCC 26 at paras. 81-83, [2014] 1 S.C.R. 575.) [16] All of this underlines the fact that the interplay between ss. 344(1)(

b) and 85(2) to (4) in setting an appropriate sentence raisescomplex questions about the application of the sentencing principles, and, in particular, those of proportionality and totality (ss.718.1 and 718.2(

b) and (

c) of the Criminal Code), to mandatory minimum sentences. Given that these issues were not raised by theparties or considered by the trial judge, and given that the Crown is not asking that the use of an imitation firearm be treated as anaggravating circumstance regarding the robbery offence, this is not an appropriate case for this court to undertake that review. [88] In R. v.

Desmond, 2011 BCSC 698,Justice Schultes said at paragraph 25: In identifying aggravating factors, it is important not to rely on factors that are part of the offence itself, thus counting them twice to thedetriment of the offender. [89] Similarly, in R. v. Holt, 2014 BCSC 2170, Madam Justice Warren said at paragraph 59: I turn now to the determination of an appropriate sentence for Mr. Holt in the absence of the three-year mandatory minimum.

First, inidentifying aggravating factors, it is important not to rely on factors that are part of the offence itself, thus counting them twice to thedetriment of the offender. For this reason, I do not consider the fact that the gun was loaded to be an aggravating factor as that is anelement of the offence. [90] The Crown appealed the 18 month sentence R. v. Holt, 2015 BCCA 302 . The appellate Court allowed the appeal andincreased the jail sentence to 30 months, which it describes as being at bottom of a range that should reflect the growing danger posed byoffenders carrying loaded guns in this province.

The Court of Appeal did not suggest the trial judge erred in her analysis set out above. [91] The issue of double dipping is applicable to the Crown's argument that Mr. Tattersall's use of a mask and imitation firearmought to be considered significant aggravating factors even though Mr. Tattersall pled guilty to the s. 251 and 88(1) offences (theoffences of masking his face with the intention to commit an indictable offence and carrying a weapon, the BB hand gun, for the purposedangerous to the public peace or for purpose of committing an offence). [92] The Crown cites R. v.

Brogan 1999 BCCA 278, as the seminal sentencing authority for armed robbery in this province. InBrogan, the offender appealed his global sentence of eight years for two armed robberies committed on the same night. In the firstrobbery, Mr. Brogan robbed the lone employee of an all-night gas station wearing a stocking mask and carrying a pellet gun. Hedemanded money, which the employee gave him from the till. Mr. Brogan and his accomplice then drove to another gas station wherehe entered wearing a mask and carrying a pellet gun and demanded money. [93] When the cashier struggled with the till, Mr.

Brogan grabbed a young woman customer, put the gun against her head, and toldthe cashier he would kill her if he did not have the money in five seconds. He began a countdown from five. The woman was terrifiedand pleaded for her life, offered to take money from her own bank account from a nearby ATM if he would let her go. Mr. Broganreached one in his countdown. When the cashier opened the till, Mr. Brogan took a few hundred dollars and fled. [94] In dismissing Mr. Brogan's appeal from sentence, Madam Justice Ryan noted that no explanation was given for the offences. Mr.

Brogan provided no reason for the trial judge to seriously entertain rehabilitation as a factor overriding deterrence and denunciation. She observed that the trial judge was entitled to emphasize as an aggravating factor the callous way in which Mr. Brogan had terrorizedthe young woman. Although it had come to light since his sentence had been imposed that Mr.

Brogan had been the victim of childsexual abuse that might account for his criminality, there was insufficient evidence that contributed to the offence in question and itcould not be said that it would have affected the sentence had the trial judge been aware of it. Thus, she concluded, the trial judge didnot err in treating the deterrence and denunciation as the most important sentencing goals. [95] In Brogan, the Court of Appeal said the appropriate range of sentence for robbery is two to nine years.

In paragraph 10 of thatdecision, Madam Justice Ryan set out those factors relevant to crafting a fit sentence for robbery within that seven-year range. She says: [10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. Ananalysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years.

The age of the offender,his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator wasdisguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in aparticular community are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to ourattention fits Mr. Brogan's situation exactly, none could. [11]

Section 718.2(

b) provides that: ...sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This

section imposes the principle of consistency. Since no two offences are ever entirely the same, the

section mandates that thecourt determine a general range for similar offences for similarly situated offenders. Offences and offenders can be generally categorizedbut a multitude of factors, as I have mentioned, will distinguish the details. Thus, in this case the range can at best be said to be between2 and 9 years.

[96] Brogan is similar to the case at bar in that the offender was 30 years old, masked, and armed with a pellet gun. Brogan is alsodistinguishable in important ways, including:

a) Mr. Brogan had a criminal record consisting of two convictions for false pretences. Mr. Tattersall had no criminal record;

b) Mr. Brogan was under the influence of alcohol when he committed the offences at bar. Mr. Tattersall was sober;

c) Mr. Brogan had an accomplice, Mr. Tattersall was alone;

d) Mr. Brogan offered no reason for the offences. Mr. Tattersall’s motives for committing the robbery was to relieve his financialdistress out of a what Dr. Morgan refers to as a “deep commitment to his wife and the desire to provide for his family”;

e) Mr. Tattersall did not want to hurt anyone and although his actions likely frightened some of the people in the TD Bank duringthe robbery, he did not terrorize anyone;

f) Mr. Tattersall did not take a hostage and was not convicted of that offence; and

g) Mr. Tattersall did not commit two robberies. [97] The Crown relies on R. v. Cooper, 2001 BCCA 473, which upheld a four and a half year sentence imposed on a robbery by thesentencing judge. Cooper involved a 35-year-old offender convicted of one count of armed robbery at the Canadian Imperial Bank ofCommerce. He had escaped lawful custody two days before committing the offence. When committing the offence, Mr. Cooper handeda female teller a note demanding $4500, indicating he possessed a gun and threatened to shoot her and everyone around her if she did notcomply. [98] Mr.

Cooper did not have a gun, but that was not apparent to the bank employees. The teller gave Mr. Cooper the money and heleft the bank. What the offender did have was an “awful” prior record, which clearly showed his “complete and utter distain forauthorities and for the law.” The sentencing judge said the offender “simply does what he wants to do, including escaping custody ontwo occasions, the latter occasion bringing the minor sentence of 30 days.” [99] Mr. Cooper was the son of a Caucasian father and aboriginal mother. He had had prospects of entering an aboriginalrehabilitation program. On appeal, Mr.

Cooper argued the sentencing judge failed to give due consideration to s. 718.2(

e) CC and theGladue factors. In dismissing this argument, Madam Justice Saunders for the unanimous court, noted the “ameliorating effect ofaboriginal status will wane as the seriousness of the offence increases.” The Court concluded that 4½ years was not demonstrably unfit. [100] Cooper is clearly distinguishable from the instant case because Mr. Cooper had an “awful criminal record” and Mr. Tattersallhad none. Mr. Tattersall had not just escaped from custody before committing these offences. [101] The Crown also relies on R. v.

Gill, 2006 BCCA 127, which allowed the appeal from a global sentence of six years imposed ona 23-year-old appellant after he pled guilty to three counts arising from a robbery of a convenience store. Justice Levine in dissent wouldhave upheld the sentence. [102] Mr. Gill was convicted of robbery in a convenience store while wearing a mask and carrying a fake gun. He stole $450 andcigars. In considering the fit sentence the Court of Appeal considered the following relevant factors:

a) Mr. Gill was only 23 at the time of sentencing;

b) Mr. Gill involved two juveniles in the commission of the offence;

c) Mr. Gill’s association with the two juveniles constituted a breach of a probation order not to associate with persons under theage of 16 which resulted from an earlier conviction for sexual assault;

d) Mr. Gill and his accomplice wore ski masks during the commission of the offence;

e) Mr. Gill pointed the gun at the clerk and demanded money;

f) Mr. Gill used an unloaded replica gun in the course of the robbery;

g) At the time of the offence Mr. Gill was serving a conditional sentence for theft of a vehicle; and,

h) Mr. Gill had a criminal record which consisted of one conviction for sexual assault, two for breaches of recognizance, and onefor theft under $5,000. [103] In Gill, Mr. Justice Mackenzie considered the principles enunciated in Brogan and Longtin and he appended a chart whichsummarized fourteen earlier decisions of the B.C. Court of Appeal setting out sentencing ranges for “armed robbery in commercialpremises by youthful offenders.” [104] In reducing Gill's sentence from six years to three, Mr.

Justice Mackenzie observed that the prospect of rehabilitation is animportant factor in sentencing of youthful offenders and he said at paragraph 16: [16] I think that it was an error in principle for the sentencing judge to conclude that deterrence and the protection of the publicrequired a "maximum emphasis" on incarceration in this case. As the Supreme Court of Canada emphasized in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, incarceration generally fails to rehabilitate offenders and reintegrate them into society.

For youngeroffenders generally, rehabilitation holds out the best long term prospect for protection of the public. For a young person, maximumsentences may undermine prospects of rehabilitation. Despite the paucity of background information given to the sentencing judge, the

prospects of rehabilitation could not be ignored in view of his age and limited record. The objectives of denunciation and specific and general deterrence did not require a maximum sentence of incarceration. [ 105 ] In allowing the appeal, Mr. Justice Mackenzie considered relevant Mr. Gill's age, his absence of any record for similar offences, and the fact that the robbery was a single incident involving an unloaded replica. [ 106 ] As defence counsel points out, Mr. Tattersall ought to be entitled the opportunity for rehabilitation.

His conduct while in custody, the presentence report, his family and community support indicates his prospects for rehabilitation are excellent. A sentence with a probation component will assist Mr. Tattersall's rehabilitation and reintegration into society. [ 107 ] The Crown also relies on R. v. Gwyn , 2013 BCCA 51 which upheld a six-year sentence for one count of bank robbery by a drug-addicted offender. Mr. Gwyn was 26, had a serious addiction to heroin and was high at the time of the offence. He had a lengthy criminal record and outstanding warrants. Notwithstanding his drug-addled confusion, Mr.

Gwyn wrote a note demanding the clerk of the Royal Bank give him $15,000. He walked away with that very sum. Only $1100 was recovered, the rest having been squandered. The sentencing judge noted that although Mr. Gwyn did not have a gun, he suggested to the teller he did and this event had been pretty frightening on the bank teller. [ 108 ] Mr. Gwyn had the mitigating factor of a guilty plea and the aggravating factor of his heroin addiction and a criminal record of property offences over several years.

Madam Justice Newbury, for the majority, commented that although the six year sentence was lying at the high end of the range she was unable to say it was not fit. She sets out her reasons paragraph 12: Of course, as counsel agreed, and as stated in Brogan , no two offences or offenders are ever entirely the same. In this case, the offender is not old but not young; he has a record that does not involve violence but which includes property crimes over several years; and he is addicted to heroin.

As Crown counsel noted, we were not given a great deal of information about his personal circumstances that might indicate that the sentence imposed here was not fit. He is not a resident of the Okanagan Valley and seems to have drifted across Canada in recent years and therefore lacks a stable support system to which he can turn. Although the court below was told he has a common law wife and child, it now appears that the mother is of the child is only his “girlfriend” and that Mr. Gwyn “ hopes ” to have a relationship with the child.

We were not informed of any specific efforts he has made at drug rehabilitation since sentencing, and it may be that his best hope for treatment and recovery lies in programs administered by Corrections authorities. Any remorse he has demonstrated for the robbery seemed lukewarm at best. These factors in my view weigh in the balance against a sentence at the low end of the range. Perhaps more importantly, we must be mindful of the sentencing judge’s comments regarding the “epidemic” of bank robberies in the Okanagan region. [ 109 ] Gwyn is of limited assistance in the matter before the court today. Mr.

Tattersall has no criminal record or outstanding warrants. He is not addicted to heroin or any other hard drugs. He has been in custody now for seven months and expressed appreciation for being clear headed as a result of his forced abstinence from marihuana. Mr. Tattersall has voluntarily taken a number of programs of substance abuse while in custody. He has close family ties and the support of the community. Mr. Tattersall's expressions of remorse are heartfelt and in my view his chances of rehabilitation are promising. [ 110 ] R. v. Longtin, 2001 BCCA 614 , is another case upon which the Crown relies.

In Longtin , the Court of Appeal upheld a five- year sentence for robbery committed by a 31-year-old offender. Mr. Longtin went into an insurance office where he handed the lone employee a note which said, "Gun in pocket. Empty till quietly. No one gets hurt." The only person in the office at the time got out the cash and put it on the counter. Mr. Longtin made off with $1500. His motive for the robbery was to pay a debt owed to a drug dealer. [ 111 ] Mr. Longtin came from a troubled background that included a deprived childhood, neglectful parents and life in foster care.

He had a lengthy criminal record that included robbery and assault. He spent eight years in prison for manslaughter. Although he had taken some steps to achieve rehabilitation, he was not entirely successful. Mr.

Longtin did not plead guilty until mid-trial when it became apparent the witness he called to claim responsibility for the robbery was actually in prison at the time of the offence. [ 112 ] The Court of Appeal in Longtin reaffirmed the early decision of Madam Justice Ryan in Brogan setting the appropriate sentencing range for robbery with violence committed by a young man between two years and nine years. [ 113 ] In finding the five-year jail term imposed by the sentencing judge fell within the appropriate range, the appellate court took into consideration Mr.

Longtin's ambiguous success at rehabilitation and the circumstances of the frightening robbery from the point of view of the victim. [ 114 ] Longtin is distinguishable from the instant case in that Mr. Tattersall had no record and his offence was not drug related. Moreover, there is every reason to have confidence in Mr. Tattersall’s rehabilitation. [ 115 ] In R. v. Thompson , 2008 BCCA 350 , a 30-year-old heroin addict committed 11 robberies of financial institutions over a three-month period. These robberies involved notes threatening violence, a knife, a gun, a syringe and a bomb.

He confessed on arrest, pleaded guilty and signed a letter of remorse. At the time of sentencing he had a conviction for uttering threats and corruptly taking a reward for recovery of goods. He was sentenced to eight years' imprisonment on each of the 11 counts to be served concurrently. The sentencing judge found aggravating those factors set out in paragraph 10:

a) the use of threats of violence while committing the offences;

b) an element of planning and deliberation as evidenced by the preparation of the hold-up notes;

c) the use of disguise;

d) threats of violence by reference to other weapons, such as a knife, syringe and a gun;

e) the preparation of the hoax bomb boxes. The sentencing judge found the offender’s references to having a bomb went beyond a threat to an individual teller and extended to all of the people in the bank;

f) the fact that the appellant was on bail for two offences at the time of the commission of the offences;

g) the victim impact statements provided by three tellers, attesting to the fear they felt at the time of the robberies in their institutions; and

h) the sheer number of robberies. [ 116 ] On the mitigating side, Mr. Thompson entered an early guilty plea, cooperated with the police, wrote a letter of remorse and had only a minor criminal record. [ 117 ] Mr. Thompson appealed his sentence. The appeal turned on the issue of rehabilitation. The Court of Appeal allowed the appeal and reduced his sentence to six years taking into account credit for the time the appellant spent in pretrial custody. Madam Justice Rowles held (at paragraph 30) the sentencing judge overemphasized protection of the public, denunciation and deterrence.

She said: Considering the positive rehabilitative promise as shown by the unusual initiative of the appellant, in my view, the sentence is excessive. and at paragraph. 32: [32] While the sentencing judge did make reference to the appellant’s age, minor record, and prospects for rehabilitation, those factors appear not to have had any modifying effect on the length of the sentence he considered appropriate.

The trial judge referred to the length of the sentence in Stauffer to demonstrate "how seriously the courts consider robberies, generally; robberies of financial institutions particularly, and instances of multiple robberies". There is no doubt that the robbery offences of financial institutions which were committed in this case were serious but the circumstances of the offences cannot eclipse consideration of the circumstances of the offender.

The prospects for the offender’s rehabilitation ought to have had a modifying effect on the length of sentence, as the reasoning of this Court in Furness confirms. [ 118 ] The Court of Appeal in Thompson relied on R. v. Furness , 2007 BCCA 492 , in which the Court of Appeal reduced the offender’s global sentence of seven years’ incarceration to five for 11 counts of robbery. The appellant was 26 years old at the time of the offences and had been using drugs since he was approximately 19 years old. He pleaded guilty to the robberies, which he committed out of a need to obtain money to buy drugs.

The robberies took place over a span of seven weeks and on each occasion the appellant produced or threatened a weapon. He had a previous criminal record, but had never spent time in custody. While in pre-sentence custody, the appellant completed a program called “Breaking Barriers”, along with other courses. The sentencing judge found the appellant had achieved his first extended period of sobriety as an adult. However, the sentencing judge held the principles of rehabilitation should not be given greater weight than protection of the public, denunciation and deterrence.

DEFENCE AUTHORITIES [ 119 ] Defence relies on R. v. Lim, 2011 BCPC 163 , a decision of Judge St. Pierre of this court. It is a comprehensive decision in which Judge St. Pierre thoroughly canvasses both the Crown and defence's sentence authorities for robbery. In Lim , the accused pled guilty to four counts of robbery and two counts of attempted robbery all while armed with an offensive weapon. Prior to the events giving rise to these offences, Mr. Lim had no contact with the police. He was a well-respected father and husband and prominent member of his church and community.

On the offence date, he consumed a large quantity of methamphetamines over a 36-hour period and went on a 28-hour robbery spree. [ 120 ] Prior to his crime spree, Mr. Lim had begun to suffer financial difficulties which were exacerbated or perhaps caused by gambling and drug use. He became stressed out about how he was going to pay his mortgage and support his family. The Court found the aggravating factors included:

a) Mr. Lim’s voluntary consumption of a significant amount of methamphetamines as a factor in the commission of the offences;

b) there was a series of robberies and attempted robberies;

c) there was an escalating use of violence, where Mr. Lim was brandishing weapons and using them to inflict injury (these weapons included a tire iron and hammer);

d) there were threats Mr. Lim used against the victims if they did not comply, including threats to harm a six month old baby;

e) There was planning involved. Mr. Lim took steps to switch licence plates on the vehicle, took steps to hide his identity; took steps to avoid detection;

f) There was the use of the stolen vehicle and stolen licence plates and again that related to planning;

g) There was dangerous driving where he took the police on a road chase before he was apprehended;

h) Four of Mr. Lim’s victims suffered physical injuries, two which required medical attention;

i) The victims were traumatized by Mr. Lim’s conduct and believe they will never again have the same feelings of peace and security when they go out in public; and

j) The victims were selected because they were women and alone. [ 121 ] The mitigating factors were:

a) Mr. Lim did not have a criminal record. He has had no prior contact with the police;

b) Mr. Lim was a 33 year old first offender who never had a custodial sentence;

c) Mr. Lim entered an early guilty plea;

d) he gave a full and frank confession and did not sugar coat his involvement;

e) he told the police he knew what he was doing was wrong; and,

f) he was genuinely remorseful for his actions. [ 122 ] The Crown sought a 5 to 6 year jail sentence in a federal penitentiary. The defence argued for a jail sentence of 12 months with a long period of probation. At paragraph 69 and 70, Judge St. Pierre states: [69] There are many cases dealing with robbery and violence. I have alluded to some of them. The defence provides a number of cases in their own casebook. I am not going to refer to all of them except to say that they indicate ranges on the lower end of the scale.

Many of them involve one robbery and that sort of thing but there are some of them that have multiple robberies. [70] The one fairly consistent aspect of most of the cases that were provided to me both by the Crown and the defence is that most of the offenders had criminal records. [ 123 ] Judge St. Pierre sentenced Mr. Lim to two years less a day followed by three years' probation. [ 124 ] In the case before the court, Mr. Tattersall's decision to rob the TD bank was fuelled by his distress over the financial quagmire in which he found himself as a result of misfortune. Mr.

Lim's crime spree was fuelled by his voluntary ingestion of methamphetamines and gambling. [ 125 ] Judge St. Pierre notes that although denunciation and deterrence are of great importance in a robbery case, they do not oust the need to consider restoration of the community and rehabilitation. Mr. Tattersall, like Mr. Lim, represents a significant and very real prospect of rehabilitation. Perhaps Mr. Tattersall even more so as he has no addiction to hard drugs or gambling, which are notoriously difficult to overcome. [ 126 ] In paragraph 42, Judge St. Pierre said of Mr.

Lim: For most of his adult life, again very significantly, he was a very productive and contributing member of his society as I have already indicated in summarizing his life. His behaviour really was extraordinary in these circumstances. One does not often see individuals engaged in the kind of conduct exhibited by Mr. Lim with the kind of antecedents that he has or lack of a criminal record and the kind of character that he has shown previously. [ 127 ] The same can be said of Mr. Tattersall whose offences were less serious than Mr.

Lim's, less in number and nature, and his offence was motivated out of financial distress rather than as a reaction to illicit drugs and gambling. ADDITIONAL AUTHORITIES [ 128 ] I have reviewed other robbery cases not cited by either the Crown or defence in search of guidance from our Superior courts. I considered R. v. Feeney , 2015 BCSC 1522 , in which the accused was found guilty of robbing the TD bank in Kelowna. The Crown argued for a sentence of six years. The defence sought 30 months followed by a period of probation. [ 129 ] In committing this offence Mr. Feeney was on day parole at a halfway house.

He went into a TD bank, said "This is robbery. I am not joking. Go and get me a thousand dollars." He walked away with the money. [ 130 ] Mr. Feeney was later identified by the police from the surveillance videos. He had a significant criminal record beginning in 1999 with convictions carrying on more or less consistently for the next 16 years. His presentence report indicated he showed no regret or remorse for his aggressive and problematic behaviour, which, while incarcerated was “nothing short of abysmal”. The sentencing judge had a healthy skepticism of Mr.

Feeney's stated desire to change his ways and sentenced him to 45 months in jail, less time spent in presentence custody. [ 131 ] In R. v. MacDonald , 2006 BCCA 535 , the Court of Appeal reduced the offender’s sentence of eight years to four years on three counts of robbery. The offences took place in Vernon over an eight-day period. While brandishing a knife, Mr. MacDonald robbed the lone clerk at a Safeway gas bar. He told her to give him all the money in the till. He ordered the clerk to hurry up and waved the knife back and forth. He was given $400 in cash.

He took the clerk's cellular phone and instructed her to go back in the back room. The clerk watched from the back room and saw the appellant wiping down the doorway, presumably to erase fingerprints. He left the clerk’s cellular phone outside when he fled the scene. [ 132 ] Eight days later, Mr. MacDonald robbed the Safeway store, again while brandishing a knife and demanding more money. Later that day, he robbed a Subway while holding a large knife. He demanded money from the two employees behind the counter.

He fled on his bicycle and was later captured hiding in a closet in his apartment. [ 133 ] At the time of sentencing, the offender was 45 with a dated criminal record consisting of 19 convictions, including seven robbery convictions. The sentencing judge imposed a global sentence of eight years on the three robberies. The court reduced the sentence to four years on each count, to be served concurrently.

Although the 46 year old accused had a substantial record of criminal offences in his young years, he had been gainfully employed, living in a stable marital relationship and not offending for a long period of time before committing the most recent crimes.

[ 134 ] Mr. Justice Smith for the appellate court conceded Mr. MacDonald was not a professional criminal and there was no reason to believe rehabilitation was not a substantial possibility. [ 135 ] In R. v. Reedel, 2006 BCCA, a 20-year-old offender, pled guilty to two counts of robbery, one count of assault, and one count of failure to appear. With respect to the robberies, he held up two liquor stores within one week. He wore a mask. On one occasion he carried a can of pepper spray which he used twice during a robbery. On another, he carried a baseball bat. On each occasion he walked away with money. Mr.

Reedel attributed his conduct to a cocaine addiction. He was sentenced to 18 months on the first robbery and two years less a day on the second to be served concurrently with a sentence on the other convictions. [ 136 ] The sentencing judge acknowledged the mitigating factors: his young age, guilty pleas, and no criminal record. The Court of Appeal upheld his global sentence of imprisonment of two years less a day. [ 137 ] In R. v.

Rosov, 2006 BCCA 276 , the 25-year-old offender pled guilty and sentenced to two years less a day, plus three years' probation for three counts of robbery and one count of theft over 5,000. At the time of the offence, the offender was subject to a conditional sentence order made by the same provincial court judge for four previous robberies. Within a week, the offender robbed a Credit Union, a TD bank and the Bank of Montreal. [ 138 ] Mr.

Rosov's conviction for theft over $5,000 involved him stealing a work truck, dragging the owner approximately 50 metres down the laneway, running over his legs and driving away without stopping. In a warned statement he later provided to the police, the offender referred to the owner as "a fucking idiot for putting himself at risk for trying to stop the truck." [ 139 ] The sentencing judge ordered the 18 months remaining on the conditional sentence order be served in custody concurrent with a custodial sentence for the two years less a day on new offences.

This reduced the effective sentence for the new offences to approximately six months in custody less the period of probation. [ 140 ] The robberies against the three financial institutions were effected by Mr. Rosov presenting notes to tellers demanding cash. He was a crack cocaine addict and under the influence of drugs at the time of the offences. [ 141 ] Chief Justice Finch found appropriate the custodial sentence of two years less a day for the new offences, but held it should be served consecutively to the time to be served in custody under the terminated CSO.

The majority allowed the appeal substituting concurrent terms for four years' imprisonment on three counts of robbery. [ 142 ] R . v. Koop; R. v. Stoneman, 2008 BCCA 140 , stands for the proposition that deterrence, denunciation and protection of the public in robbery cases should not necessarily outweigh rehabilitation in sentencing younger offenders. (By younger offenders, I mean young men, not offenders under the age of 18.) [ 143 ] The offenders were brothers who committed two robberies in Kelowna during the early morning hours. The first robbery was committed at 2:30 a.m. at a Petro Canada service station.

The second was committed at 4:00 a.m. at a Mac’s convenience store. They took cartons of cigarettes and cash at each robbery. They made threatening statements to the cashiers. They made references to a gun in the first robbery. They did not actually have a firearm with them, but they did have a can of bear spray. [ 144 ] The B.C. Court of Appeal set aside the sentences of incarceration for the two offenders who committed the two robberies and imposed a conditional sentence in their place.

Justice Tysoe for the court held that the sentencing judge had erred in failing to explain why the principles of deterrence and denunciation precluded a conditional sentence. He said: The principles of deterrence and denunciation are important principles to consider when sentencing a person who has committed robbery, and they will usually prevail over other considerations and result in a prison sentence.

However, these principles should not be considered to the exclusion of the principle of rehabilitation. [ 145 ] The clear message from the Koop and Stoneman case is that deterrence and denunciation must be balanced with rehabilitation. [ 146 ] R. v. Neigum, 2014 BCSC 2177 , is typical of many of the sentencing cases to which Judge St. Pierre refers in Lim . B.C. Supreme Court convicted Mr. Neigum following a trial of robbery using an offensive weapon, a knife, and of having his face masked with intent to commit an indictable offence. Mr. Neigum robbed a liquor store in early hours of the night.

He brandished a knife, he pushed the dull end of the knife into the victim's body, and in perpetrating the robbery he had his face covered with a scarf. He pulled his hoodie down low so he had only exposed his eyes. He stole money and cigarettes in order to obtain money to purchase drugs. The store clerk was traumatized by the incident and experienced panic attacks. [ 147 ] Mr. Neigum was a 42 years old drug addict with a lengthy and unenviable record that commenced in 1991 and continued through the years with only small gaps.

He had multiple prior convictions for violence and numerous property offences, including break and entry. He had completed a lengthy jail sentence at the time of the offence. The only thing that could be said on his behalf was that he had no prior convictions for robbery. [ 148 ] The Crown, relying on Brogan and Longtin , argued that the global sentence in that case should be three to five years' imprisonment and that denunciation, deterrence, and separation from society were most important factors for the court to consider. The rehabilitation, while relevant, should take a lesser role given Mr.

Neigum's age and criminal record. Mr. Neigum sought a global sentence of two years, four months less time served. He argued he was not without prospects for rehabilitation and an ability to lead a pro-social life. [ 149 ] The sentencing judge concluded that a fit, global sentence for these two offences was 40 months’ imprisonment for robbery and two years for having a masked face served concurrently. Mr. Neigum served a total of four months in presentence custody. Therefore, the actual sentence imposed in respect of the robbery was 36 months or three years’ imprisonment. GLADUE FACTORS

[150] Mr. Tattersall asserts Metis heritage and therefore the principles set out in Gladue as interpreted by Ipeelee apply. Section718.2(

e) imposes on this court a duty to consider the Gladue factors in every case involving an aboriginal offender regardless of theseriousness of the offence. In the instant case a presentence report did not include a Gladue component due to time pressures. [151] The Crown and defence agree that Mr. Cooper on Mr. Tattersall's behalf should explain those factors to the court. In Ipeelee theSupreme Court of Canada summarized the principles of Gladue, which are well-known to both the Crown and the defence: [59] The Court held ... that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing ... It does more than affirm existing principles of sentencing; it calls upon judges to use a different method ofanalysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention tothe circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginaloffenders ... When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which mayhave played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures andsanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage orconnection ... Judges may take judicial of the broad systemic and background factors affecting Aboriginal people generally, butadditional case-specific information will have to come from counsel and from the pre-sentence report ... [152] The Crown submits that Mr. Tattersall has not established a causal connection between the systemic or background Gladuefactors in the commission of the offence before the court.

Neither Gladue nor the Code places such a burden on Mr. Tattersall. InIpeelee the Supreme Court of Canada states at paragraph 83 that: ... it would be extremely difficult for an aboriginal offender to ever establish a direct causal link between his circumstances and hisoffending.

The interconnections are simply too complex. [153] In considering a fit sentence, I will do as directed by the Supreme Court of Canada, which is to take judicial notice of thehistorical background of Canada's aboriginal people, such as colonialism, displacement, and residential schools, and how it continues totranslate into all manner of societal impoverishment such as on the educational front, income and employment disadvantages, and higherrates of substance abuse, suicide, and higher levels of incarceration. [154] The presentence report indicates Mr.

Tattersall suffers from many of these disadvantages, he is yet to complete high school, heis unemployed, he suffers from marihuana substance abuse, and he is now incarcerated. STATUTORY MAXIMUMS AND MINIMUMS [155] Robbery, contrary to s. 344(1)(

b) of the Criminal Code is an indictable offence, attracts the maximum sentence of imprisonmentfor life. Having his face masked with intent to comment an indictable offence, contrary to s. 351(1) of the Criminal Code attracts amaximum term of imprisonment for 10 years. Carrying or possessing a weapon, namely a BB gun for the purposes of committing anoffence, contrary to s. 88(1) of the Criminal Code where the Crown has proceeded by Indictment, as they have here, attracts themaximum term of imprisonment of 10 years. FIT SENTENCE IN THIS CASE [156] In considering the offences committed by Mr. Tattersall, I find the following factors to be important:

a) The crimes were premeditated involving some planning and targeting the TD bank on O'Grady Road and avoiding capture. Still, it was a simple plan, which was not designed to physically hurt anyone and focussed principally on running into the bush to getaway. Nevertheless, circumstances can escalate quickly beyond what was originally anticipated by the offender;

b) Mr. Tattersall disguised himself by the use of a mask, goggles, and a hoodie. Although this is a factor, its weight is limitedbecause Mr. Tattersall has been convicted of the offence of having his face masked with intent. Even if the sentence for the offence ofmasking his face with intent to commit an indictable offence is served concurrently with the offence of robbery, it is still an indictableoffence for which he will receive a criminal record;

c) There was only one robbery in one location on one day. It lasted less than three minutes. Still today, Mr. Tattersall will havethree criminal convictions when yesterday he had none;

d) Banks are particularly vulnerable to crimes of this nature. Having said that, banks are generally robbed in daylight and have inplace sophisticated security systems as evidenced by the fact the entire robbery was captured on surveillance video;

e) Bank employees working in metropolitan areas during the day have emergency services close at hand. For example, in thiscase the police were notified of the robbery while it was occurring despite its brief duration. They arrived on the scene within minutes. Bank employees are not vulnerable in the same way as clerks late at night in convenience stores. In this regard, I cite Mr. Justice Joycein R. v.

Browning, 2006 BCSC 1478 at paragraph 38 where he says: [38] … there is also the need to denounce this kind of crime in which the offender, in search of a quick dollar with which to buy drugs,preys on persons who are often young and forced to work late at night, by themselves in convenience stores, gas stations and the like,and who are very vulnerable. In this case, the victims fortunately were not physically harmed, but they were traumatized and exposed tothe potential for serious harm.

f) The victims are bank employees and customers. Although Ms. Mayhew indicates she has ongoing nervousness with respect tothe bank security, she has no ongoing fear of Mr. Tattersall. There does not appear evidence the bank employees and customers sufferedongoing lasting trauma similar to the victims in the Brogan or Neigum;

g) Mr. Tattersall's use of an imitation weapon is a factor, but the weight to be given to it is limited because he will be punished separately for the offence of carrying a weapon dangerous to the public peace to commit an offence. Mr. Tattersall will still have a criminal conviction for using or carrying a BB gun for the purpose of committing an offence under s. 88(1) . This is a significant penalty to a man who had no previous criminal record;

h) Mr. Tattersall has no prior criminal convictions;

i) Mr. Tattersall was motivated by his acute anxiety over his disintegrating financial circumstances and his overwhelming commitment to provide for his family. Although he did spend up to $200 a month on marihuana, he did not court his financial woes with gambling and hard drugs like Mr. Lim. I acknowledge that acute financial distress is not an excuse for committing crimes, but neither is an addiction. I am not persuaded the degree of responsibility of an offender who commits a crime out of a desperate need to feed his family is higher than an offender who commits a crime to feed his addiction;

j) Mr. Tattersall pled guilty immediately, cooperated with the police, the probation officer and the forensic psychiatrist;

k) In pleading guilty, Mr. Tattersall has spared the witnesses the stress and anxiety of testifying about the incident in court;

l) Mr. Tattersall has used his time in presentence custody to further his education and rehabilitation.

m) Mr. Tattersall is at a low risk to reoffend. His pre-custody dependency on marihuana does not appear to have been a significant factor in the commission of the offences. He and his wife have indicated they have abandoned that lifestyle. Mr. Tattersall has no drug addiction which threatens public safety;

n) Mr. Tattersall is a young man with a supportive family with excellent prospects of rehabilitation;

o) Mr. Tattersall is an aboriginal offender and the principles espoused in s. 718.2(e), Gladue and Ipeelee , apply;

p) Mr. Tattersall will suffer collateral consequences from the sentencing which will include a mandatory firearms prohibition. He will be prohibited for many years from participating in a traditional aboriginal activity with his father which was meaningful to him, and a recreation he enjoyed; and

q) Mr. Tattersall's remorse is genuine and he understands the harm he has done to his victims. For someone in Mr. Tattersall's circumstances, that is, a 31-year-old family man with no prior criminal record, three criminal convictions for indictable offences are significant, negative life-altering events. [ 157 ] Mr.

Tattersall, if you could stand up, please. [ 158 ] For robbing the Toronto Dominion bank of money while armed with an imitation offence weapon, contrary to s. 344(1) (b), I sentence you to a term of two years less a day, from which you will receive credit for your presentence time in custody since August the 11th, 2015, which is 199 days, enhanced by a factor of 1.5 to 298.5 rounded up to 299.

This means you will have 429 days yet to serve, which is about one year, two months, and four days. [ 159 ] For the offence of having your face masked with intent to commit an indictable offence, contrary to s. 251(2) of the Criminal Code , I sentence you to a term of imprisonment of one year to be served concurrently with all other sentences imposed today. [ 160 ] For the offence of carrying or possessing a weapon, namely a BB gun, for the purposes dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code , I sentence you to a term of imprisonment of one year to be served concurrently with all other sentences imposed today. [ 161 ] Following your release from prison, you will be on a probation period for two years on terms which I will later describe.

The primary purpose of this probation will be for your rehabilitation and protection of the public. [ 162 ] You will be subject to a 10-year firearm prohibition pursuant to s. 109 of the Code prohibiting you from possessing any firearms other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition, and explosive device for 10 years pursu

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