2018 MBPC 16, 2018 MBPC 16

Citation: 2018 MBPC 16 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Ashleigh Smith, ) ) for the Crown - and – ) ) ) Louis Mendelson, Christian Swampy, ) ) for the Accused Accused ) ) ) Judgment delivered: April 18, 2018 ) MARY KATE HARVIE, P.J. Introduction [ 1 ] The accused Christian Swampy has entered guilty pleas to the robbery of a taxi cab driver on July 14, 2016 and to the attempted robbery of the Bank of Montreal on the same date. Crown counsel seeks a global sentence of four years.

Defence counsel argues that the “exceptional circumstances” of the offence and the offender, coupled with the Gladue-Ipeelee factors, allow for the imposition of a suspended sentence or alternatively for a sentence incorporating the time the accused has spent in custody, being the equivalent of 12 months, followed by a lengthy period of supervised probation. [ 2 ] Materials filed in this case include an agreed statement of facts, a Pre-Sentence Report, two forensic reports, letters of support and a booklet of case law.

The Facts [ 3 ] At approximately 9:30 a.m. on July 14, 2016, the accused hired a cab, gave the driver directions and asked about the fare. The driver gave an estimate of $15 and when he requested payment up front, the accused advised that he had no money but that his girlfriend would pay when they arrived at the destination. When attempts to confirm this arrangement were unsuccessful, the driver asked the accused to exit the cab. The accused responded, “start driving or I will hurt you”.

When the driver refused, the accused replied, “how about if I take your cab”, stating further “I’m going to take your cab – I have a weapon.” Although the accused did not produce a weapon, he put his hand inside his jacket and threatened to shoot the driver. Frightened, the driver parked the car, took his keys, and got out of the car. Without the keys, the accused was unable to start the cab, so he walked across the street, stole a bicycle and rode away. [ 4 ] At approximately 10:30 a.m., the accused went to the Bank of Montreal at 335 Main Street.

While pacing the main hallway, he appeared nervous and requested several cups of water from the teller. When asked by a teller if he had an account at the bank, he answered, “Yes”, passing her a note that read, “Call the cops, I’m mentally ill.” When the teller asked him to leave, the accused repeatedly mumbled, “Call the cops, don’t call the cops, call the cops, don’t call the cops”.

She left to speak to her manager, and the accused approached a second teller, who asked if he wanted her to call the police as his note indicated, to which he responded “Don’t call the cops, you know what I want.” At that point, the manager came out from his office and the accused made several demands for money while waving his arms and yelling, “Give me 50’s, 20’s, and 100’s”, warning him not to call police. The accused followed the manager as he walked back to his office, pausing to eat a banana taken from the office fruit bowl.

He then returned to the front counter, repeating to the teller that he wanted money and threatening her again. At this point, the manager phoned the police and the teller pushed the panic alarm. [ 5 ] The police arrived and arrested the accused. As they were leaving the bank, the police noted that the accused was chewing one of his robbery notes. When they searched him, the police found two notes in his pocket – one which said, “give me all the fuckin money or your all gonna die I have a gun don’t panic” and another that said, “call the cops I’m mentally ill”.

Once at the station, officers left the accused alone but on video in an interview room where he was seen speaking to himself, laughing and making comments about ways he should have committed the robbery. [ 6 ] Shortly after his arrest, the accused was taken to the Health Sciences Centre Inpatient Forensic Psychiatry Unit. He remained

there for a number of weeks undergoing assessment, following which he was transferred to Headingley Correctional Institute. Counsel have filed as exhibits the Assessment reports dated August 18, 2016 and November 8, 2016.

These reports conclude that the accused is fit to stand trial, and that during the weeks leading up to the offence he “appeared to be experiencing symptoms of psychosis”, including “delusions, hallucinations, and paranoia.” The reports also confirm that prior to these offences the accused had experienced multiple psychiatric incidents, including a suicide attempt, resulting in his attendance at the hospital and at the Crisis Response Centre. [ 7 ] Crown counsel point to the concerns expressed in the August 18, 2016 report that the accused may have been exaggerating some mental health symptoms.

However, it is noteworthy that the earlier psychiatric incidents have collateral confirmation and that the report concludes that the accused was suffering from a “Methamphetamine-Induced Psychotic Disorder, Stimulant Use Disorders” and “Antisocial Personality Disorder.” Circumstances of the Offender [ 8 ] The accused has a criminal record for a variety of offences, including breaches of court orders and theft, with the most significant entry being for possession for the purpose of trafficking, for which he received a total of 547 days in custody.

At the time of the offence, he was subject to two separate probation orders. [ 9 ] The Pre-sentence Report is thorough and outlines this 26-year-old offender’s traumatic upbringing. He spent his early years with his mother who suffered from addictions and abuse. His only contact with his father, also an addict, occurred when he was 20 years old. Both parents have been involved in the criminal justice system. The accused describes the trauma of losing his best friend, whose body was missing for some time. Police believe he was murdered, although no one was ever charged.

His family describes the significant impact of this incident, saying that it was like, “a piece of Mr. Swampy being lost.” [ 10 ] The accused has a long history of abusing alcohol and other substances. Despite moving to the supportive environment of his grandmother’s home at age nine, he started drinking at age 10, smoking marijuana at age 13 before moving on to cocaine, crack cocaine and crystal methamphetamine. At the time of the offence, the accused asserts that he had been awake for a week from using crystal methamphetamine and was hearing voices before he “blacked out”.

Although he does not recall the offences, he accepts full responsibility, expresses victim empathy and is remorseful for his actions. [ 11 ] The accused’s mental health status has stabilized while in custody. He now sees a physician regularly for his mental health issues and expresses a willingness to continue with his treatment. [ 12 ] Following his arrest, the accused spent eight months in custody before his release on bail to Forward House Ministries, where he has demonstrated considerable success.

He volunteers, attends Alcoholics Anonymous and is taking courses to obtain his high school diploma. [ 13 ] The accused is close to his aunt, who attended Court for the sentencing. She tells probation services that she has seen him mature since the offences, and that he has worked to stabilize himself by taking his prescribed medication and meeting with his doctor on a regular basis. She relates that he refused alcohol at his sick grandmother’s bedside because he did not want to compromise his sobriety, confirming his commitment to abstention from drugs and alcohol.

This positive response to an emotionally charged situation demonstrates an awareness on the part of the accused respecting his own behaviour management. Gladue-Ipeelee Factors [ 14 ] Because the accused is of Indigenous heritage, the Court must consider Gladue-Ipeelee factors, codified under Criminal Code s. 718.2(e). These encourage a restorative approach to sentencing by paying particular attention to an offender’s systemic or background factors that may have contributed to the criminal behaviour.

Judges are encouraged to take judicial notice of the broad systemic and background factors affecting Indigenous people generally, including the history of colonization, displacement and residential schools, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and higher levels of incarceration. While these factors alone do not necessarily justify a different sentence for an Indigenous offender, they provide the necessary context for understanding and evaluating the case specific information.

This is consistent with the notion that in order to determine a fit and appropriate sentence, sentencing judges must engage in an individualized assessment of all relevant factors and circumstances including status and life experience of the accused.

The Court is asked to consider factors that include : • the relationship between the offender and his or her community; • the combination of background or systemic factors that contributed to bringing this offender before the courts; • how the offender has been affected by substance abuse in the community, poverty, overt racism, family or community breakdown; • whether imprisonment would effectively serve to deter and denounce the crime or whether these goals are better achieved through healing; and whether other sentencing options are available. [ 15 ] The accused is an Indigenous male who lives in Winnipeg but remains connected to his home community of the Sagkeeng First Nation, where he lived until he was 21 years old.

He and his family speak Ojibway. The Pre-Sentence Report provides some details with respect to the home community. He is connected to traditional Indigenous culture, including participating in sweat ceremonies and smudging. His grandparents attended residential schools and have received compensation from the Federal Government. They spoke with the accused about some of their experiences, although they found some incidents were too difficult to discuss. [ 16 ] Like the accused, both his parents have struggled with addiction and substance abuse.

It is clear that his addictions have contributed directly to his involvement in these offences. Notwithstanding this difficult background, he has managed to deal with his addiction while out on judicial interim release and involve himself with positive activities.

Exceptional Circumstances [ 17 ] Defense counsel argues that the facts of this case and the background of the accused amount to “exceptional circumstances”, thus allowing for the imposition of a community based sentence. Although the principle of exceptional circumstances has been applied for many decades, the Manitoba Court of Appeal recently discussed its application in the trio of cases of R. v. Peters 2015 MBCA 119 ; R. v. Tran , 2015 MBCA 120 ; R. v. Racca , 2015 MBCA 121 , and expanded further in R. v. Burnette 2017 MBCA 122 .

Exceptional circumstances is a common law sentencing principle that is difficult to define, but is one that has the practical effect of acting “as a safety valve for the justice system in those ‘rare cases’ where the circumstances are beyond the norm.” ( Burnett , para. 22 citing R. v. Voong , 2015 BCCA 285 at para. 59 ).

This is separate and distinct from the general discretion a sentencing judge has to depart downward or upward within a sentencing range to impose an individualized sentence based on circumstances of a particular case. [ 18 ] In Tran , Monnin J.A. noted that the a finding of “exceptional circumstances” invariably “involves multiple mitigating factors” (see para. 24), which may include a combination of a lack of criminal record, significant steps towards rehabilitation, gainful employment, remorse, and an acknowledgement of the harm done to the community.

Other factors may include strict bail conditions, cooperation with the authorities, guilty pleas, health issues, or other personal circumstances. The Court went on to note, “the aspect of demonstrated rehabilitation over a period of time might be the most persuasive of those factors.” (para. 27) [ 19 ] In Burnette , Mainella J.A. reiterated that a finding of exceptional circumstances should only occur in the “clearest of cases”, and that it is open to a sentencing judge to depart from a starting point or usual sentencing range without having to resort to exceptional circumstances.

Exceptional circumstances should only be found where the sentencing judge wants to impose a sentence completely apart from the usual range of sentence given for that type of offence in those circumstances.

A finding of exceptional circumstances does something far more dramatic than simply showing leniency from a starting point or sentencing range, but rather it essentially allows a judge to forgo deterrence and denunciation as the primary sentencing goal, and to focus primarily on rehabilitation rather than punishment. [ 20 ] In Burnette , Mainella J.A. noted that the “core features” of a finding of exceptional circumstances requires consideration of the way in which the offence is committed, the circumstances of the offender or a combination of both.

Where there is an arguable case of exceptional circumstances, two themes emerge: 1) Has the accused concretely demonstrated that he or she has turned life around?; 2) Would the fundamental purpose of sentencing be better served by a custodial or non-custodial sentence by someone who has proven to turn his life around? A sentencing judge must be mindful not to conflate sympathetic circumstances with exceptional circumstances. [ 21 ] Are the facts of these offences and the circumstances of this offender exceptional? The way in which the offences were committed was, to say the least, unusual.

The attempted robbery of the bank was unsophisticated and the bizarre behavior of the accused was consistent with someone suffering from a mental illness. So, too, with the robbery of the cab driver, which was unsophisticated, unplanned and unsuccessful. [ 22 ] As it relates to an “exceptional circumstances” finding, the concerning aspect of the accused’s personal circumstances relates to his criminal record and to the fact that he was subject to two separate probation orders at the time of the offence.

I note that he has also had a number of incidents while in custody, although some appear related to his mental health issues. While the lack of a criminal record is not a mandatory requirement for the finding of exceptional circumstances, those offenders who come before the Court with previous convictions have a significant hurdle to overcome. [ 23 ] It is clear that the accused has made “significant and objectively identifiable steps toward rehabilitation”. He has been on judicial interim release for 12 months with no breach allegations.

Clearly, the accused has done well in the supportive environment of Forward House, where he participates in art classes, attends church and bible study, and attends regular AA meetings. The accused is presently unemployed and is on Employment Insurance due to his mental health issues, but is attending classes at the Adult Education Centre to earn his high school diploma. He volunteers at Forward House Ministries doing odd jobs and at the Kildonan Thrift Shop. [ 24 ] The letters of support confirm the efforts made by the accused. Mr.

Rob Adey, a volunteer who works with men with addiction issues indicated that the accused “has had a real change in his outlook on life, attitudes and in a spiritual way” and that he has had a “genuine change of direction.” Other letters confirm that the accused has a good work ethic and a positive attitude. Mr. Peter Harzan, Director at Forward House Ministries, was interviewed for the Pre-Sentence Report and attended court to show his support.

He describes the accused as having “been a pleasure to have around the residence as he is dealing with his addiction issues, not involved in criminal activities and takes his medication as prescribed and meets his psychiatrist on a regular basis”. [ 25 ] Are the circumstances of the offence and the offender sufficiently exceptional to warrant the imposition of a suspended sentence? For the following reasons, I find that they fall short of such a finding.

While it is clear that the offences were committed while in a drug induced psychotic disorder, they were committed by an individual with a significant criminal record that includes a lengthy custodial sentence. He has been given the benefit of probation on more than one occasion.

This is a very different situation from that of the first time offender whose sole offending behaviour flows directly from a specific set of issues, which the offender subsequently addresses. [ 26 ] Further, while the accused is to be commended for his efforts to address his addictions and his addictions-based mental health issues, it is a situation where his sobriety has yet to be tested in the community. The support from Forward House and the positive decisions made by the accused are all positive signs.

However, the safety of the community requires the imposition of a sentence that will ensure that the accused is properly monitored, and one that addresses denunciation and deterrence. [ 27 ] Having said that, I am satisfied that this is an offender for whom consideration of the Gladue-Ipeelee factors, combined with the very positive steps taken towards rehabilitation, allow the Court to consider a sentence which would otherwise be either at the lower end or outside the range of what is appropriate for two robbery-related offences.

As noted in Burnette , “the law does not require a sentencing judge to find “exceptional circumstances” to justify imposing a sentence that merely departs downward from a judicially created starting point or sentencing range” (see para. 25). [ 28 ] This is not a conclusion reached lightly. The offences are very serious and involve victims whose chosen work leaves them

vulnerable to acts of violence. While Crown counsel did not file formal Victim Impact statements, she confirmed that she spoke to the bank teller, who advised that this was the second time she has been the victim of a robbery. The cab driver told police that he felt “so scared- I thought he was going to shoot me.” Despite the fact that the accused did not make physical contact with either victim, and that no weapon was found on the accused, it is important to bear in mind that denunciation and deterrence are considered to be of paramount importance for offences of this nature.

I am also satisfied, however, that this is a case where the long-term protection of society can best be met by a sentence where denunciation and deterrence are tempered by the principle of rehabilitation.

Such an approach also takes into account the Gladue-Ipeelee principles that encourages a restorative approach to sentencing. [ 29 ] Having considered the aggravating and mitigating facts of this case, the proximity in time within which the offences were committed, as well as the Gladue-Ipeelee principles, I am satisfied that these offences require the imposition of a custodial sentence and that time the accused has spent in custody, considered on an enhanced basis, is sufficient.

The sentence will be one of one day, being the thraccused’s appearance in court, with credit for eight months of time in custody, enhanced at the rate of 1.5 to 1, for the equivalent of 12 months, imposed concurrently for both offences. [ 30 ] This will be followed by three years of supervised probation with the following conditions: • Statutory conditions including Keep the Peace and be of Good Behaviour; • Report to Probation Officer within 24 hours of appearance in Court and thereafter as directed to do so by your Probation Officer; • Attend, participate and complete any counselling or programing as directed to do so by your Probation Officer; • Complete 100 hours of community service at the time and place directed by Probation Services.

The Community service work is to be completed within the first 18 months of the order; • Not to attend Bank of Montreal, 335 Main Street, Winnipeg Manitoba; • Not to own, possess or carry any weapons, except any items that might be used in the course of employment; • No Contact or Communication with Jarnail Singh Purba or Jesilyn Timmerman. [ 31 ] The accused will be subject to a Mandatory Weapons prohibition pursuant to Criminal Code s. 109.

This will be a lifetime prohibition. [ 32 ] The accused is required to provide a sample suitable for DNA analysis within the next 30 days. [ 33 ] The Costs in this matter are waived. There is a mandatory surcharge of $200 per offence. The accused will be given one year to either pay this amount or work it off through the fine option program. “Original signed by” MARY KATE HARVIE, P.J.