2017 MBPC 11, 2017 MBPC 11

Cite: 2017 MBPC 11 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Adam Bergen and ) Deborah Carlson, - and – ) for the Crown ) Bradley McIvor, Accused ) ) ) Theodore Mariash, for the Accused ) Judgment delivered: ) February 13, 2017 ) TRACEY M. LORD, P.J. [ 1 ] Having previously determined that the fit and appropriate sentence for Mr. McIvor absent the mandatory minimum, would be less than five years, it is necessary to consider the constitutional motion raised by the applicant. Positions of the Parties [ 2 ] The Applicant, Mr. McIvor, submits that section 344(1) (a)(

i) of the Criminal Code is contrary to

section 12 of the Canadian Charter of Rights and Freedoms , which provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. [ 3 ] The Applicant further submits that a five year sentence is grossly disproportionate to what would otherwise be a fit and proper sentence, which in this case I have determined to be in the range of three and one-half to four years. [ 4 ] The applicant also puts forth a number of scenarios which he says are reasonably foreseeable situations or hypotheticals that illustrate why this is so. [ 5 ] The first scenario that counsel for Mr.

McIvor says illustrates this principle, is the involvement of a young female with diminished capacity who is drawn into criminal activity by a cult. If she was convicted of robbery with a prohibited firearm as a party for acting as a lookout from the getaway vehicle, she would be subject to a mandatory five year sentence. [ 6 ] The second reasonable hypothetical put forward involves an accused who believes he or she is using an imitation firearm in the course of a robbery rather than a real firearm that had been altered to a state of being prohibited.

This scenario, the applicant says increases the applicable sentence for using an imitation firearm in the commission of an offence under s. 85(2) (

a) from one year to the mandatory minimum of five years for the use of a prohibited firearm. [ 7 ] The third reasonable hypothetical proposed involves an individual who commits a theft by shoplifting while in the possession of a prohibited firearm that is not seen, brandished or used in any way.

Defence counsel argues that despite the fact that the firearm in this scenario is not used in the course of the shoplifting offence, this accused would be subject to the mandatory minimum of five years. [ 8 ] The applicant further submits that this sentencing provision unlike other sentencing provisions such as s.91 and s. 95 of the Criminal Code does not take into account whether or not the firearm was loaded at the time of the offence.

Section 91 , which simply deals with the possession of a prohibited weapon of any kind does not provide for a minimum sentence, whereas s. 95 which deals with the possession of a loaded prohibited firearm or readily accessible ammunition provides for a minimum sentence of three years and requires proof of knowledge. [ 9 ] The applicant submits that this is inconsistent in that there is no sentencing differentiation to address whether a prohibited firearm is loaded or not when dealing with its use as there is when dealing with its possession.

This inconsistency should be taken into account in the s. 12 analysis. [ 10 ] The applicant also submits that there is no rational connection between the increase in sentence from four to five years for the use of a prohibited firearm in the course of a robbery, as opposed to a firearm that is not prohibited, and that this is therefore arbitrary. [ 11 ] And finally, in the case of Mr. McIvor, the firearm he used had a total length of 566 millimetres which is 94 millimeters less than the legal threshold of 660 millimetres. Counsel for Mr.

McIver also submits that this difference is so inconsequential that is should also be taken into account in the

section 12 analysis.

[ 12 ] The respondent Crown submits that the minimum sentence of five years is not grossly disproportionate for the circumstances of this offence and this offender and further that it would also not result in the imposition of a grossly disproportionate sentence in other reasonably foreseeable circumstances.

Further the Crown says that the reasonable hypotheticals put forward are not relevant because they relate to other legal issues such as mistake of fact or mens rea . [ 13 ] Moreover, the respondent Crown submits that the increase in mandatory sentence relating to the use of a prohibited firearm as opposed to a regular firearm is rational and justified, as prohibited firearms are inherently more dangerous because they are easy to conceal. Legal Framework and Analysis [ 14 ] The analytical framework and test for whether a punishment is cruel and unusual has been confirmed by the Supreme Court of Canada in R. v.

Nur , 2015 SCC 15 and in R. v. Lloyd , 2016 SCC 13 . A mandatory sentence will contravene s. 12 of the Charter if it imposes a sentence that is grossly disproportionate to what would have otherwise been appropriate, or if the law’s reasonably foreseeable application will impose grossly disproportionate sentences on others. [ 15 ] At paragraph 24 of R. v. Lloyd the Supreme Court also confirmed that: to be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent and intolerable” to society.

And further, the wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. [ 16 ] The framework for this analysis is well established and has been applied in a number of cases in Manitoba. ( R. v. Adamo , 2013, MBQB, 225 (Man. QB), R. v. McMillan , 2013 MBQB 229 ( Man. Q.B.), and R. v. Hailemolokot and Mesgna , 2013 MBQB, 285 (Man.Q.B). [ 17 ] The analysis to be followed is a two stage process.

The court must first determine whether a particular punishment is grossly disproportionate on the basis of the factors outlined by Justice Simonsen at paragraph 11, of the Hailemolokot and Mesgna decision: 1. The gravity of the offence; 2. The personal circumstances of the offender and the particular circumstances of the case; 3. The effect of the punishment on the individual; 4. Whether the punishment is necessary to achieve a valid penal purpose; 5. Whether valid alternatives to the punishment imposed exist; and ; 6. The punishments imposed for other crimes in the same jurisdiction.

Not all factors will be relevant nor will a single factor be determinative. [ 18 ] In this case the charge Mr. McIvor faces is robbery with a prohibited firearm. Robbery with any type of firearm, even an imitation one is serious. The use of a prohibited firearm however presents an elevated risk to members of the public because such weapons are easily concealed and are therefore difficult to detect.

The fact of their alteration for this purpose adds a layer of criminal conduct that assists the perpetrator in evading detection both before and after an incident of violence such as this one. [ 19 ] Despite the fact that in this case Mr. McIvor retreated when challenged by the victim and no actual theft or assault took place, threats to use the firearm to harm the victim were made and the firearm was brandished in a busy public roadway. [ 20 ] The imposition of a penitentiary sentence in these circumstances serves to denounce this type of conduct and to deter others.

These two factors must be the paramount sentencing principles in cases such as this one.

Such an approach to sentencing is in keeping with like factual scenarios and similar offenders in this jurisdiction as well as others. [ 21 ] My conclusion is that a sentence of five years in these circumstances for this offender is not a grossly disproportionate one. [ 22 ] Having made that finding, the Court must then go on to consider whether the impugned provision would result in cruel and unusual punishment in reasonably based hypothetical situations. [ 23 ] I do not find the reasonable hypotheticals suggested by the applicant compelling.

They do not deal with circumstances in which this sentencing provision would necessarily be applicable. [ 24 ] The scenarios put forth deal with circumstances that are either addressed by the application of other offence sections, such as a possession offence as opposed to a use offence, or they trigger the application of other legal defences or trigger an examination of the element of mens rea .

[ 25 ] I am not satisfied that the range of conduct that this offence and the mandatory minimum sentence provision captures would result in the application of a grossly disproportionate sentence for other offenders. [ 26 ] I am therefore sentencing Mr. McIvor to a sentence of five years incarceration. His time in custody of 391 days at time and a half credit for the equivalent of 587 days will be subtracted from that.

The sentence for robbery with a prohibited firearm going forward will be 1238 days. [ 27 ] On the charge of point firearm the sentence will be one of three years concurrent. [ 28 ] On the charge of carrying a concealed weapon the sentence will be one of three years concurrent. [ 29 ] On the charge of possession of a prohibited firearm the sentence will be one of 3 years concurrent. [ 30 ] A DNA Order will attach to the count of robbery with a prohibited firearm. [ 31 ] A s.109 firearm prohibition for ten years will attach counts 1, 3 and 6. [ 32 ] Costs and surcharge will be $808.00.

There will be no time to pay. “Original signed by” TRACEY M. LORD, P.J.