R. v. Nur, 2016 MBPC 62

Cite: 2016 MBPC 62 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Adam Bergen, and ) Deborah Carlson, - and – ) for the Crown ) Bradley McIvor, ) Theodore Mariash, Accused ) ) for the Accused ) ) Judgment delivered: November 16, 2016 ) TRACEY M. LORD P.J. Introduction/Legal Framework [ 1 ] Mr. McIvor has entered guilty pleas to robbery while using a prohibited firearm (s. 343 – 344(1)(a)(i)), pointing a firearm (s. 87(1)), carrying a concealed weapon (s. 90), and unauthorized possession of a weapon (s. 91(1)(a)).

All charges relate to one incident that occurred on January 19, 2016. [ 2 ] The offence of robbery while using a prohibited firearm carries a minimum sentence of five years incarceration. Mr. McIvor has brought a constitutional challenge to the minimum sentencing provision on the basis that it violates s. 12 of the Canadian Charter of Rights and Freedoms (the Charter ) by being cruel and unusual punishment. [ 3 ] The procedure to be followed in such a challenge has been set out by the Supreme Court of Canada in the cases of R. v. Nur , 2015 SCC 15 , and R. v.

Lloyd , 2016 SCC 13 . [ 4 ] A challenge to a mandatory sentencing provision under s. 12 of the Charter involves two steps. The first step is for the court to determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code , without regard to the mandatory minimum sentencing provision.

If the court determines that the appropriate sentence is the minimum set out or greater, then the constitutionality of the provision need not be considered further. [ 5 ] If however the court determines that the appropriate sentence is less than that set out in the mandatory sentencing provision, then the court must go on to ask whether the mandatory minimum would require the imposition of a sentence that is grossly disproportionate to the circumstance of the offence and the offender. If so, then the provision violates s. 12 of the Charter . Circumstances of the Offences [ 6 ] On January 19, 2016 Mr.

McIvor and another male, who has not been identified, attempted to rob the victim in this matter Mr. Brooks with a sawed off rifle. [ 7 ] Prior to his involvement with the two accuseds Mr. Brooks had observed them to have stolen a bicycle from a male youth on McPhillips Street. The two co-accused continued to harass the youth who sought refuge in the 7-11 at McPhillips and Selkirk Avenue. [ 8 ] While Mr. Brooks was escorting the scared youth away from the area, he was confronted by Mr. McIvor and the other male. During the confrontation the two demanded Mr. Brooks’ property. Mr.

Brooks and the youth backed into the roadway on McPhillips, at which time the youth ran away. Mr. McIvor pointed the sawed off rifle at Mr. Brooks and threatened to shoot him. Mr. Brooks challenged him both verbally, and by producing a bottle to defend himself, after which Mr. McIvor and his co-accused backed down and left the immediate area. [ 9 ] The Police arrested Mr. McIvor a short time later in possession of the rifle, hidden in his sleeve. Mr. McIvor maintains, and the Crown accepts, that he knew the rifle was not loaded.

He made a fulsome statement to police upon his arrest. [ 10 ] The weapon used was found to be a .22 calibre semi automatic rifle with both the stock and barrel sawed off, and the serial number removed. By virtue of its altered size the rifle is a prohibited firearm. The rifle was unloaded when recovered from the accused, but was determined to be fully functioning and in proper working order.

[ 11 ] While this robbery is properly described as an unsophisticated one, it was nevertheless undertaken with deliberate planning. Circumstances of the Offender [ 12 ] Mr. McIvor is a 22 year old indigenous male with treaty status from Sandy Bay First Nation. He grew up in Winnipeg but has also at times lived in Dauphin. He and his sister were raised by their mother who was employed full time. As a result they were largely on their own and unsupervised. In terms of education, he has only managed to complete grade nine. [ 13 ] Mr. McIvor began to use drugs and alcohol at an early age.

He also began associating with gang members and became involved in criminal activity at around the age of fifteen. He has a significant history of drug and alcohol use. In the past, he has also sold drugs to feed his addiction. [ 14 ] Mr. McIvor is in an on again off again relationship. His partner lives in Dauphin, where she is raising three children, two of which are Mr. McIvor’s. He has no other meaningful involvement with community activities or resources. At the time of this incident, Mr. McIvor was living in Winnipeg; he was unemployed and homeless.

His need for money was the motivation for his involvement in this incident. [ 15 ] Collaterals spoken to describe Mr. McIvor, when sober, as a polite and respectful individual. [ 16 ] Mr. McIvor knows very little of his aboriginal heritage and cultural traditions. He does know however that his grandparents were negatively affected by their attendance at residential school. [ 17 ] His record as a youth includes offences of violence, and failing to comply with court orders.

His record as an adult is almost entirely for breaching court orders in a variety of ways. [ 18 ] With the exception of his current circumstances Mr. McIvor has only served brief periods of time in custody, the longest of which was approximately 12 days. [ 19 ] Probation Services have assessed him for various reasons, most of which are related to his general socioeconomic circumstances, to be a very high risk to reoffend. [ 20 ] There are many resources available to Mr. McIvor particularly in the community of Dauphin where he hopes to reside with his girlfriend and children upon his release.

Given his history of non compliance with court ordered conditions, Probation Services concludes that Mr. McIvor will require structure and close supervision to remain crime free in the community. Positions of the Parties [ 21 ] The Crown takes the position that a period of incarceration in excess of the mandatory minimum of five years is warranted in the circumstances. [ 22 ] Counsel for Mr. McIvor submits that absent the mandatory minimum provisions, a period of two years incarceration would be an appropriate sentence. Principles of Sentencing [ 23 ] The Criminal Code of Canada , R.S.C.1985, c.

C-46 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a safe, peaceful society through the imposition of just sanctions that denounce unlawful conduct; deter offenders from criminal conduct; when necessary separate offenders from society; assist in rehabilitation; provide reparation to the victim and the community and promote a sense of responsibility in offenders. [ 24 ]

Section 718.1 sets out the fundamental principle, that a sentence must be proportionate to the gravity of the circumstances of the offence and the degree of responsibility of the offender [ 25 ] A sentence should be similar to sentences imposed on similar offenders for similar offences and an offender should not be deprived of liberty, if a less restrictive sanction may be appropriate in the circumstances. [ 26 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with special attention to the circumstances of aboriginal offenders, [ 27 ] Finally, a sentence should be increased or decreased to account for any relevant aggravating or mitigating factors relating to the offence and the offender.

Aggravating and Mitigating Factors [ 28 ] It is mitigating that upon his arrest Mr. McIvor readily admitted his involvement in this incident to the Police, and entered guilty pleas early on in the court process, as soon as full disclosure of the Crown’s case was made. [ 29 ] He accepts responsibility for his actions and acknowledges that the victim of the robbery must have been scared during the incident. [ 30 ] Further Mr. McIvor acknowledges that alcohol was a factor in this incident and is open to participating in addiction treatment.

Aggravating Factors [ 31 ] The context and facts of these events are in and of themselves aggravating. A member of the public who was attempting to assist a young person who had been victimized and was afraid, was set upon in a public place and confronted with a firearm. For his trouble, he was forced into the roadway and was threatened with being shot. [ 32 ] This type of sawed off firearm presents a significant danger to the public because it can so easily be concealed, exactly as it was in this case. Applicable Case Law [ 33 ] I have reviewed all of the case law submitted on the issue of appropriate sentence.

I will comment on two cases in particular that are somewhat similar in terms of circumstances and applicable principles. The principles of deterrence, denunciation and rehabilitation along with Gladue factors must be considered first and foremost. [ 34 ] In the R. v. Hanska , 2014 MBQB 184 , in sentencing a young aboriginal male offender, similar in many respects to Mr.

McIvor, for robbery with a restricted firearm, Justice Martin at paragraph 24 commented on the application of the applicable sentencing principles in this way In terms of balancing all of the factors that I must, I find the primary sentencing factors here to be denunciation, deterrence and rehabilitation. The sentence to be imposed must be one which plainly signals society’s concern with this type of offence. It must be a sentence that clearly shows Mr.

Hanska, and, very importantly other like minded young criminals, whether in gangs or not, that there is a severe penalty to be paid for violent crimes, particularly if possessing or using a firearm to commit the crime. And further at paragraph 25, The ultimate objective or interest in sentencing for violent crimes must be to keep the community safe. This interest is often aligned with rehabilitation of an offender, for if an offender is rehabilitated then he is no longer a threat to the community. [ 35 ] Ultimately Mr. Hanska was sentenced to seven years on the count of robbery with a restricted firearm.

There were aggravating factors present in that case that are not present here. Mr. Hanska did not know if the handgun he brandished was loaded or not, and he attempted to fire it while pointing it at the victim. He was also on bail at the time and in breach of a condition prohibiting him from possessing weapons. [ 36 ] Those aggravating factors are not present in the case of Mr. McIvor. [ 37 ] R. v.

Hailemolokot and Mesgna , 2013 MBQB 285 , is a case involving convictions for two accuseds of two counts of robbery using an unloaded air pistol, which met the definition of a firearm. [ 38 ] Both accuseds were part of a group, and although not involved in the actual use of the firearms in question were involved in the planning, were present for the incident and in the case of Hailemolokot brought the firearms to the incident and was the driver of the vehicle used. [ 39 ] In that case the victims did not think the weapons brandished were real and challenged the group of assailants.

Ultimately the victims were able to leave, as did the group of accuseds. The sentencing judge felt that a sentence of less than the mandatory minimum of four years was appropriate on each count but found that a sentence of four years concurrent on both matters was not grossly disproportionate.

Neither accused had a criminal record. [ 40 ] Weighing all of the applicable sentencing principles along with all of the aggravating and mitigating factors and the Gladue factors present, I have concluded that in the absence of the mandatory sentencing provision the sentence that I would impose would be one in the range of three and one-half to four years. “Original signed by” TRACEY M. LORD P.J.